Obesity, Liberty, and Public Health Emergencies by JON AT HAN HERI N GTO N, A NGUS DAW SO N, and HE ATHE R D RA P E R Obesity is now a critical problem worldwide, but effective government intervention has been undermined by concerns about the infringement on individual liberty. Recognizing that the obesity problem has some of the features of a public health emergency might provide a response to those concerns.

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idespread obesity poses a serious challenge to health outcomes in the developed world and is a growing problem in the developing world. At least a quarter of the population is obese in Saudi Arabia (35 percent), Egypt (34 percent), the United States (33 percent), South Africa (33 percent), Mexico (33 percent), Venezuela (31 percent), Argentina (29 percent), Chile (29 percent), Turkey (29 percent), Australia (25 percent), Russia (25 percent), and the United Kingdom (25 percent).1 Current trends suggest that by 2030, approximately half the population of the United States, the United Kingdom, and Australia—and almost a fifth of the world as a whole—will be obese.2 While the causal contribution of obesity to poor individual health is contested, the condition is strongly associated with a range of comorbidities—including poor mobility, osteoarthritis, sexual dysfunction, and depression—and an increased risk Jonathan Herington, Angus Dawson, and Heather Draper, “Obesity, Liberty, and Public Health Emergencies,” Hastings Center Report 44, no. 6 (2014): 26-35. DOI: 10.1002/hast.350

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for stroke, diabetes, heart disease, and certain cancers.3 Attempts at quantifying this health impact suggest that obese individuals stand to lose five to seven healthy life years from the comorbidities and early mortality.4 One recent study estimates that 3.8 percent of the global burden of disease can be attributed to high body-mass index (including 3.3 million deaths and 93 million disability-adjusted life years in 2010 alone).5 There has been a raft of proposals to combat the challenge of obesity, including restrictions on the nature of food advertising, the content of prepared meals, and the size of sodas; taxes on saturated fat and on calories; and mandated “healthy-options” on restaurant menus. These interventions have had varying degrees of success, but many seem to have a greater impact on rates of obesity than does simply providing information about health risks and healthier lifestyles. The more interventionist policy options have, however, been implemented only slowly, in large part because of criticisms that they are unjustified infringements on the liberty of consumers. Food industry groups, free-market think November-December 2014

tanks, and the popular press regard measures that incentivize or penalize particular food and lifestyle choices as unjustifiable state regulation of purely self-regarding behavior. Some even deny that obesity should be viewed as a public health problem at all.6 To counteract the liberty-oriented position, those who favor a more interventionist role for the state have recently argued for labeling obesity as a public health emergency.7 In this view, while we might accept that the state should ordinarily refrain from interfering with the self-regarding behavior of its citizens, that presumption is much less stringent during a public health emergency. By labeling obesity as a public health emergency, policy-makers could override concerns about individual liberty in order to pursue more interventionist policies designed to guide consumer choices toward healthier lifestyles. In this paper, we argue that, contrary to initial appearances, obesity possesses some of the morally relevant features of public health emergencies, though we do not argue that it actually constitutes one. We start by considering some definitions of public health emergencies and identify two putative features of such emergencies—grave risk and imminence— that have traditionally been thought to permit greater interference in the lives of citizens than would normally be sanctioned. We go on to explore the common view that imminent risks involve only one opportunity for state intervention and to suggest that most paradigmatic public health emergencies would fail to meet this condition. We propose a revised conception of public health emergencies focused on the capability of individuals to avoid harm and the difficulty of acting alone to bring about these alternatives. We apply this approach to the problem of widespread obesity, as an exemplar of an accumulative public health emergency. We conclude by discussing some potential objections to our characterization of obesity as a public health emergency. November-December 2014

Public Health Emergencies and the Millian Model

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s already suggested, public health policy is often guided by a presumption against state interference in the lives of individuals. We will refer to this as the “Millian” approach to public health ethics, since it can be traced back to John Stuart Mill’s robust defense of individual liberty, and for the sake of argument, we will assume that it is justified.8 From this approach, the state is permitted to interfere in individuals’ lives only when their behavior risks harm to the health of others.9 While this permits the state to protect those

forcibly evacuating even those unwilling to leave their homes.12 These interventions do not neatly fit the Millian framework. Compulsorily evacuating residents from around the reactor and quarantining those only potentially exposed to SARS amount to restricting the liberty of people who may not pose any risk to others. These interventions might ordinarily be unjustified, but many people are likely to judge them proportionate and necessary in the context of emergency situations.13 In this sense, public health emergencies can be thought of as situations in which the primacy of liberty temporarily recedes, such that, in the words of Michael Wal-

Food industry groups and free-market think tanks regard measures that incentivize or penalize food choices as unjustifiable state regulation. In the context of a public health emergency, however, much greater interference in citizens’ lives is often viewed as permissible. unable to make autonomous choices (such as children or the intellectually disabled) and to inform citizens about health risks, it is strongly opposed to interference in the lives of autonomous individuals for their own good. Accordingly, in this view, if individuals are competent and fully informed but nonetheless engage in behavior that harms only their own health, then interference by the state is unjustified paternalism. In the context of a public health emergency, however, much greater interference in citizens’ lives is often viewed as permissible.10 During the 2003 outbreak of severe acute respiratory syndrome in Toronto, for instance, Canadian public health officials isolated both those known to be infected and those who had merely come into contact with the infected.11 Likewise, during the 2011 Fukushima Daiichi nuclear disaster, the Japanese state imposed a mandatory exclusion zone around the stricken reactors,

zer, the normal “constraints lose their grip, and a certain kind of utilitarianism reimposes itself.”14 Given the prima facie moral significance of the category, what are the salient features of a public health emergency? Perhaps the most widely recognized definition of a public health emergency is contained in Lawrence Gostin’s Model State Emergency Health Powers Act, which defines a public health emergency as (1) an occurrence or imminent threat of an illness or health condition, that (2) is caused by bioterrorism or a new or re-emerging infectious agent or biological toxin previously controlled and that (3) also poses a high probability of a large number of deaths, a large number of serious or long-term disabilities, or widespread exposure to an infectious or toxic agent that poses a significant risk of

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substantial future harm to a large number of persons.15

This definition takes epidemics of deadly infectious disease—such as SARS, the 2001 American anthrax attacks, and pandemic strains of influenza—to be the paradigmatic examples of a public health emergency, but its narrow focus on infectious disease appears arbitrary. Indeed, there is likely to be broad agreement that noninfectious public health disasters— such as the Bhopal chemical plant leak, the 2004 Boxing Day Tsunami, or the Fukushima Daichi nuclear disaster—also constitute public health emergencies.16 Though not caused by infectious agents, the “scale, timing, (and) unpredictability” of these disasters and their impact on population health seem sufficiently grave so as to make an exclusive focus on infectious disease unjustifiable.17 Existing work on the nature of emergencies (in general) suggests that they are situations of “urgent need,”18 where “there is a risk of great harm or loss and a need to act immediately or decisively if the loss or harm is to be averted or minimised.”19 Following this work, we might define public health emergencies as those phenomena that pose a grave and imminent risk to population health. This suggests two jointly necessary criteria for a public health emergency. First, the risk to population health must be grave.20 A risk is grave if the expected harm of allowing the risk to materialize is especially high (that is, the probability-weighted sum of the possible harms to population health, given no intervention, is especially high). Some risks, such as highly pathogenic infectious diseases, are grave insofar as they may result in truly catastrophic harms to population health, even though the likelihood of this harm occurring is relatively low.21 Other phenomena, such as the Fukushima nuclear disaster, pose a high likelihood of moderate but nontrivial harms to population health.22 While it is often difficult to precisely assess the expected harm to population 28 HASTI N G S C E N T E R R E P ORT

health of a particular disease or risk factor, if there is good reason to suspect that the harm to population health is either very likely or exceptionally serious, then the phenomena likely meets this criterion. Second, the risk to population health must be imminent.23 A risk is imminent if immediate and decisive action is necessary to mitigate the expected harm. Typically, this is understood as meaning that there is one, and only one, opportunity to eliminate or substantially reduce the expected harm before the actual harm to population health is decided by fortune alone. A highly pathogenic infectious disease meets this condition because it is supposed that, absent immediate intervention, the severity of the actual harm will be “out of our hands” and instead decided by the natural dynamics of the disease’s epidemiology. Both the gravity and imminence condition must be satisfied for a risk to population health to qualify as a public health emergency. While many ordinary public health problems pose grave risks to population health, these risks are rarely imminent. Thus, while the enormous burden of disease resulting from tobacco smoking is a major public health problem, it is not considered a public health emergency precisely because, at each moment, the expected harm to population health that could be averted by immediately interfering is relatively minor. Whether or not some phenomenon constitutes a public health emergency thus appears to rest on the gravity of that portion of the risk requiring immediate intervention. The Moral Relevance of Public Health Emergencies

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his definition not only captures the paradigmatic cases but also explains why public health emergencies are treated as exceptions to the Millian approach to public health ethics. Recall that Mill ordinarily endorses the principle that the state may interfere with a competent indi-

vidual’s behavior only if that behavior risks harm to others. He recognizes an exception to this principle, however, in cases of imminent risk to the agent’s own welfare: It is a proper office of public authority to guard against accidents. If either a public officer or any one else saw a person attempting to cross a bridge which had been ascertained to be unsafe, and there were no time to warn him of his danger, they might seize him and turn him back, without any real infringement of his liberty; for liberty consists in doing what one desires, and he does not desire to fall into the river.24

Where an agent’s behavior poses a grave risk to his or her own well-being, we have a reason to suspect that the capacity for autonomous choice is compromised (perhaps by a lack of information or a momentary impairment). Ordinarily, this suspicion can be allayed by informing the individual of the grave danger the behavior poses, on the understanding that we will have multiple opportunities to intervene later should it appear that the individual has not fully understood the risks he or she is taking. If the risk is imminent, however, then attempting to inform the individual is likely to be impracticable or ineffective. Moreover, since this is our only opportunity to intervene to protect the individual’s interests and simply giving the individual information is unlikely to ensure that the person is making an autonomous choice, it is permissible to interfere in order to safeguard the presumed interests of that individual. Since public health emergencies involve grave and imminent risks to the health of a large number of individuals, the emergency exception appears to straightforwardly apply to policy designed to address them. A public health emergency transforms ordinary behaviors—shopping, attending sports events, moving freely in the community—into gravely November-December 2014

risky activities, justifying the initial suspicion that individuals who engage in such risky behavior do so unwittingly. Moreover, since public health communication is complex and fraught, public information campaigns to address imminent risks are held to be impracticable or ineffective. Thus, typically, the gravity of the imminent risks faced by individuals during a public health emergency grants the state permission to interfere to protect their presumed interest in remaining healthy and, so, to protect population health. Imminence, Uncertainty, and Autonomy

during outbreaks of highly pathogenic infectious disease. Likewise, compliance with calls for voluntary evacuation during the Fukushima Daichi crisis was remarkably high despite the great material and emotional costs of evacuation to individuals.25 Moreover, we should be careful not to interpret isolated continuance of risky behavior (such as entering the Fukushima evacuation zone) as revealing ignorance of the risks, as it may simply be a calculated behavior to satisfy some subjectively important interest (such as recovering family artifacts or tending livestock). Perhaps bioterror attacks or chemical spills, since they can create disproportion-

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Where an agent’s behavior poses a grave risk to his or

t is important to note that this explanation for the qualitative distinction between public health emergencies and normal public health risks relies heavily on the imminence condition. Where there are multiple opportunities for state intervention, properly informing individuals is likely to be feasible, and an individual’s understanding of risks and benefits can be consistently affirmed. Unfortunately, the precise contours of imminence and its role in justifying an emergency exception are underexplored. In what follows, we provide four reasons to doubt the straightforward justification for treating public health emergencies as special cases, and we suggest that Mill’s own account of emergency exception does not support the qualitative distinction between normal public health ethics and public health emergencies. First, we should be skeptical of the purported infeasibility of providing information to individuals during a public health emergency. Simply warning agents of the gravity of risks during a public health emergency may be an especially powerful tool for behavior change insofar as individuals are inclined toward an overabundance of caution during a public health emergency. Simple information campaigns may be effective at creating “natural” social-distancing

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prompt him to incur the risk: in this case, therefore, (unless he is a child, or delirious, or in some state of excitement or absorption incompatible with the full use of the reflecting faculty) he ought, I conceive, to be only warned of the danger; not forcibly prevented from exposing himself to it.26

On closer inspection, then, Mill’s account of the imminence condition requires that intervention is necessary to avoid actual harm rather than expected harm. The nature of grave risks to population health, qua risks, is that there is no certainty about whether a harm will occur

her own well-being, we have reason to suspect that the capacity for autonomous choice is compromised. It is simply untrue that most individuals who are obese would freely engage in behaviors that they know make them obese. ate panic, might qualify as instances in which individuals’ ability to receive and interpret information is genuinely compromised by the imminence of the risk—but this is a much narrower range of events than those captured by the standard definition of a public health emergency. Second, Mill’s own understanding of imminence is too narrow to capture the full range of paradigmatic public health emergencies. The Millian exception treats imminence as a binary condition: immediate intervention is either necessary to prevent the harm, or it is not. Indeed, Mill explicitly rules out intervention if we are uncertain whether the behavior will risk great harm: Nevertheless, when there is not a certainty, but only a danger of mischief, no one but the person himself can judge of the sufficiency of the motive which may

and, thus, intervening immediately is almost never strictly necessary to avoid actual harm. Even in seemingly straightforward cases, such as during an outbreak of a highly pathogenic infectious disease, many of those directly exposed to infected individuals only slightly increase their risk of harm, since a number of environmental and biological factors are relevant to determining each individual’s actual outcome. Likewise, with events such as Fukushima, increases in the absolute risk to the health of each individual are slight, even if the population health effect would be dramatic. Public health emergencies, rather than involving strictly imminent harms to individuals, involve only a risk of harm and, in this sense, offer only a “danger of mischief ” that agents ought to be warned against. Third, public health emergencies rarely involve a single opportunity to mitigate the expected harm. During H AS TI N GS C EN TE R RE P O RT

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a public health emergency, there are almost always subsequent opportunities (after exposure to a pathogen or toxin, for example) to provide medical treatments that will mitigate the most serious of the expected harms. To be sure, these subsequent opportunities to intervene may have a very low likelihood of success or involve an intervening period of pain and suffering. While we might be able to treat the victims of a chemical disaster (such as the Bhopal incident) once they develop serious disease, treatments are likely to be less effective, more burdensome for patients, and very costly. However, insofar as the imminence condition requires that we attend only to the gravity of those expected harms that require immediate intervention to mitigate, we may appeal only to the expected harms of delaying intervention to the next opportunity. Fourth, this understanding of the imminence condition suggests that while the imminence of a grave risk may sometimes be sufficient to justify interference, it is by no means necessary. To illustrate, consider the plight of a rafter slowly drifting toward the brink of a dam’s spillway.27 The current is slow but strong, and the rafter will reach the brink in ten minutes, at which point she will be highly likely to suffer serious injury or death. She is distant enough that we cannot communicate, and, although we cannot be certain, she appears to be distressed and struggling in the current. Luckily, we can lower a sluice gate in less than a minute, and there is thus ample opportunity to close the gate before the rafter reaches the brink. The relevant options are thus either to close the sluice gate immediately or to allow the rafter to struggle against the current. Those who believe that restrictions on individual autonomy for individual benefit are justified only by the gravity of those expected imminent harms might be drawn toward this line of reasoning: Closing the sluice now (rather than in the next minute) will likely save the rafter some distress, but this does not justify 30 HASTI N G S C E N T E R R E P ORT

interfering with her liberty. If this is our final opportunity to prevent the rafter’s death, then that would be a sufficiently imminent harm, but there will be plenty of opportunities to prevent that from happening. This reasoning is obviously faulty: for we know that the next minute (and every subsequent minute) we will be faced with exactly the same choice—to close the sluice now to prevent some distress to the rafter or to wait until the next minute. If we take account only of those harms that will arise between now and the next opportunity to act, then we will countenance action only when the gravest harm is just about to occur. Likewise, even if there is some threshold of distress (say, seven minutes of terror) after which we think closing the sluice gate would be justified, it doesn’t follow that we must wait until that threshold is proximate. Delaying closing the sluice until the intolerable harm becomes imminent is akin to cheerfully accepting the first ninetynine blows before protesting strongly at the coup de grace. These four problems suggest that the standard understanding of the imminence condition is in reality rarely satisfied and that it would exclude most paradigmatic cases of a public health emergency. Where a harm to an individual’s health is easily reversible or where there will be many reasonable opportunities to prevent its realization, direct intervention on these grounds is not justified. We therefore suggest that when the imminence of a risk is considered to be the reason we hold an intervention to be morally justified, it is not because immediate intervention is strictly necessary to prevent the realization of the harm. An Alternative Model: Emergencies and Individual Capability

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e believe, therefore, that the standard appeal to Mill’s emergency exception does not do the work that Millian public health ethics often

requires of it. We suggest instead that the exceptional status of most public health emergencies can be grounded in three general features of public health that operate in extremis during a public health emergency. These features focus on the capability of individuals to unilaterally eliminate or mitigate grave risks to their health. In this respect, we believe that appeals to Mill’s emergency exception ought to be supplemented by appeal to these three general autonomy-limiting features. This, in effect, undermines the status of the Millian harm principle as the guiding principle of public health ethics and establishes a plurality of considerations that operate both in public health emergencies and with normal public health problems. Grave risks and the tragedy of the commons. First, grave risks to population health—imminent or otherwise—may contribute to a qualitative moral distinction between normal public health problems and emergencies because the social, economic, and political impact of such risks imposes nontrivial costs on all members of society, regardless of whether their health is affected. Where individuals act recklessly with their own health, the costs they impose on others are often minor, even imperceptible: slight increases in insurance premiums or small additional burdens on state health care budgets.28 In normal circumstances, the cumulative impact of these externalities does not impose significant harms on others, and so there is little reason to interfere with this (otherwise) self-regarding behavior.29 In cases, however, where the impact on population health is particularly severe, such as during many public health emergencies, there are two reasons to consider these otherwise imperceptible harms to be relevant. First, the cumulative impact of otherwise self-regarding reckless behavior may begin to impose significant costs on others, particularly where a health care system involves the pooling of health costs. Second, risks to the health of individuals (whether voluntarily assumed or otherwise) November-December 2014

may begin to degrade important public goods once enough individuals are afflicted. Consider that the normally private act of refusing to be vaccinated against pandemic influenza endangers the health of others only when so many individuals refuse vaccinations that “herd immunity” against influenza begins to be undermined.30 This “tragedy of the commons” effect may be especially evident in the context of a public health emergency, where a grave risk of decline in population health is often accompanied by the risk of economic, social, and political instability.31 These effects undermine our capability to autonomously pursue alternatives, not just with respect to health, but with respect to the full range of ends we may pursue. To be sure, if the expected population health impact of individual reckless behavior is small, then the case for intervention is poor, but as the number of individuals who (knowingly or otherwise) put themselves in danger rises, and as the gravity of the risks increases, so does the case for intervention. Individual capability to pursue alternatives. Second, there may be reason to doubt whether individuals are always able to protect their own interests in a relevant way. Since the standard Millian account takes state action in a public health emergency to be justified by imminent harms, it is tempting to think that what matters is whether the state has subsequent opportunities to intervene. On the contrary, we ought to concentrate on the capability of each individual to pursue alternatives that reduce risks to his or her health. For both the man about to step onto the dilapidated bridge and the rafter, what is salient is that the individual lacks the capability to avoid the expected harm without interference by some outsider. During a public health emergency, individuals likewise face a dearth of opportunities to minimize the risk to their health—because they lack the ability to weigh the relevant information before the risk materializes—or they November-December 2014

cannot avail themselves of such opportunities because avoiding the risk would subsequently impose intolerable burdens. For instance, we might think that risk information during the Fukushima crisis was so complex that the capability of individuals to autonomously choose to avoid the risk was compromised. Moreover, the very high material and emotional costs of abandoning a home or business may have likewise limited the capability of individuals to do what they themselves ultimately judged to be in their best interests. Finally, once exposed to the radiation within the zone, the individual had no real subsequent opportunities to mitigate the expected harm. The imminent or ongoing loss in capability to mitigate a risk to one’s own health is what appears to justify intervention by oth-

strong will is required in order to execute it effectively (think of the difficulty of quitting smoking in a culture in which smoking is common or socially important). Where individuals face such risks, we suggest, there is no reasonable alternative to state intervention—because it is likely to be the only effective means of coordinating action to enable those who wish to reduce their risk to do so.32 Public health emergencies are not qualitatively distinct from regular public health challenges but, rather, extreme instances in which the state’s already existing role as social coordinator is most required. Strictly speaking, none of these three complications provides paternalistic justifications for state intervention, but they do provide reasons to think that state action is justified

Public health emergencies are not qualitatively distinct from regular public health challenges but, rather, extreme instances in which the state’s already existing role as social coordinator is most required. ers. In this sense, the loosening of the constraints on state intervention during a public health emergency may be justified not only by the imminence of the harms but also by the reasonableness of the alternatives open to the individual. The difficulty of unilateral action. Finally, whether reasonable alternatives exist rests partly on the difficulty of taking unilateral action to mitigate a risk. Consider that many risks cannot be mitigated effectively through individual effort alone, in that truly effective action requires collective action on the part of many individuals in order to have an appreciable impact on the risks that all face. Even where an individual could take unilateral action, such action may be exceptionally difficult, either because it involves significant costs to the agent’s other interests or because an exceptionally

for other reasons than merely seeking to prevent harm to others in a straightforward sense. Obesity and Public Health Emergencies

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his revised account of the moral importance of public health emergencies suggests that we should not focus just on how quickly particular harms accumulate but also on how gravely they affect population health and the moral costs of interventions designed to avert them. This has important implications for the scope of public health problems that may warrant justifiable state intervention. Some slowly accumulating health problems—HIV/AIDS, smoking, and obesity—impose enormous social costs. Likewise, in instances where there are serious psychological H AS TI N GS C EN TE R RE P O RT

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or social barriers to effectively weighing (and acting on) the risks and benefits of particular behaviors, the multiple opportunities to warn individuals of the risks they face may not have a sufficiently high likelihood of success to count as reasonable alternatives. On this basis, we can view interventions that interfere in the lives of individuals in order to prevent an increase in population obesity as permissible for three reasons. First, without a significant change in the trajectory of the problem, the harms of obesity will likely have a much greater impact on population health than those of most paradigmatic public health emergencies. Excess deaths attributable to Bhopal (6,000 to 20,00033) and SARS (77534) are, while undeniably tragic, relatively small against the serious and ongoing burden arising from obesity. Currently, with rates of obesity somewhere between 25 and 30 percent, the excess number of deaths attributable to obesity in the United Kingdom (42,000 per year35) and the United States (112,000 per year36) is far in excess of the impact of these events. Moreover, while the mortality burden from the most serious public health emergencies—such as a “reasonable worst case” influenza pandemic—may be much greater,37 whether such a pandemic will occur is highly uncertain. The harms of widespread obesity, however, are almost certain. Holding rates of obesity steady, we would expect 600,000 to 840,000 excess deaths and 2.2 to 6.3 million quality-adjusted life years lost to obesity over the next twenty years within the United Kingdom.38 Of course, we ought not expect obesity rates to remain steady; indeed, 50 to 60 percent of the U.K. population is projected to be obese by 2050.39 The mortality and morbidity attributable to obesity at this level of population obesity is difficult to assess, but a straightforward extrapolation of excess deaths (given the current level of roughly 24 percent obesity) would suggest that almost 100,000 32 HASTI N G S C E N T E R R E P ORT

deaths per year could be attributed to obesity. This burden of disease imposes grave economic and social costs. The U.K. economy, for instance, is already estimated to lose 16 billion pounds per year due to obesity-related productivity losses and excess healthcare costs.40 If the projections for 2050 are credible, then the economic costs of obesity could be equivalent to those of a severe pandemic—almost 50 billion pounds—except that they would recur every year.41 Studies of the social and economic lives of obese people consistently find that they are prone to social anxiety, depression, isolation, and loss of income at rates far greater than their normal and overweight peers.42 Thus, the expected social cost of obesity is likely to be much greater than that of paradigmatic public health emergencies such as pandemic influenza. In this respect, absent an effective intervention to alleviate these costs, both obese and nonobese individuals living in societies with widespread obesity will be worse off than they would be were population obesity at lower levels. Second, once an individual has become obese, subsequent opportunities to avert the harms of obesity are highly likely to fail. There is a widespread belief that even if an individual becomes obese, he or she may take relatively simple steps to lose that excess weight before the onset of the gravest harms (such as metabolic syndrome and cardiovascular problems). Contrary to this view, however, research on weight-loss suggests that it is extremely difficult for people who become obese to return to and sustain a healthy weight.43 In this sense, we might plausibly suggest that once an individual becomes obese, reducing obesity or avoiding the harms of obesity are so likely to fail that they do not constitute reasonable opportunities to avert the individual harms of obesity. In such circumstances, direct intervention to prevent such harms from arising in the first place may be seen as more justifiable.

Third, even when individuals choose to heed warnings concerning the risks that particular diets and lifestyle choices pose to their health, they still face substantial costs to unilaterally reducing their risk of becoming obese. Education campaigns designed to promote healthy lifestyles—including public information campaigns, food-labeling initiatives, and other awareness-raising initiatives— are often effective at changing expressed attitudes toward obesity but do little to change long-term behavior.44 This disconnect between attitudes and behavior may exist because of the cost and difficulty of accessing healthy food,45 the lack of infrastructure for safe and enjoyable physical activity (bicycle lanes, to pick a single example), or the psychosocial impact of living within populations with substantial levels of obesity.46 Because simply warning individuals of the risks of unhealthy diets and lifestyles does nothing to alleviate these barriers to unilateral risk reduction, there may be no reasonable alternative to direct state intervention to reduce the risks. These three features suggest that the impact of obesity, even today, may justify state intervention in the lives of individuals similar to that commonly considered justifiable during a public health emergency. Objections

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ome may be wary of our critique of the standard understanding of a public health emergency, and especially its implications for obesity. We consider these objections in turn. Distinguishing “emergencies.” To begin with, one might object that this revised account of public health emergencies dismantles a valuable political distinction between our response to chronic public health problems like obesity and public health emergencies such as pandemics. Such an objection claims that the logic of emergency is irrevocably opposed to the notion of individual rights and responsibilities and that its extension November-December 2014

outside of tightly limited periods is to be deplored.47 We accept that a permanent exception to rights and responsibilities would be an unacceptable conclusion of labeling obesity a public health emergency, but we contend that it is precisely the Millian idea that emergencies operate as “exceptional circumstances” that has this unfortunate effect. By arguing that these three, more general, features of public health operate in extremis during an emergency, we challenge the notion that emergencies should be regarded as exceptions, and it is in this context, where the focus is on protecting individual capability to reduce risk, that our claim that obesity warrants similar treatment to a public health emergency should be viewed. Uncertainty. Second, others might wonder whether we must be certain that individuals lack capability before intervening. Recall that Mill suggests that, where uncertainty exists, it is better to let individuals decide for themselves what potential risks to run and to give them the relevant information. To be fair, however, such a view must also take into account any uncertainties related to nonintervention as well. The mere existence of uncertainty is not itself grounds for nonintervention. During a paradigmatic public health emergency, the benefits of most interventions will be quantifiable within days, weeks, or months. By contrast, the full benefits of interventions to control the major noncommunicable public health problems (such as smoking, obesity, and alcohol use) will materialize only in many years’ time (and over a greater span of time). In this respect, the fact that the causes of harmful chronic diseases accumulate slowly reduces the risks of using less effective means insofar as there may be lots of opportunities later to change course, but it increases risks in that it will take much longer to evaluate the effectiveness of interventionist measures. In this respect, whether state intervention to combat obesity ought to be implemented will be dependent on two considerations. November-December 2014

First, implementing and evaluating nonintervention ought not to preclude implementation of state intervention to avert the threshold. Second, the expected harms to health over the period of evaluation should not, by themselves, be greater than the threshold. Given that chronic public health problems often have very large ongoing health impacts, we ought to be cognizant of the expected costs of successively implementing and evaluating noninterventionist but potentially ineffective control policies instead of, say, moderately interventionist but effective alternatives. Similarly, there may be a worry about always opting for the least

same morally relevant features as a public health emergency misses an important point, namely, that no one chooses to be infected with pandemic influenza, whereas individuals freely choose to participate in behavior they know will make them obese. We ought to strongly reject this characterization of individual behavior in relation to virtually all health problems, including obesity. Almost all harms to health are the product of multiple risk factors—those related to the behaviors of others, those endogenous to each individual, and those that are a product of the natural and social environment—and it is often difficult to identify the causal

Without a significant change in the trajectory of the problem, the harms of obesity will likely have a much greater impact on population health than those of most paradigmatic public health emergencies. restrictive alternative. Such an approach suggests that there is a justification for delaying restrictive action if there is good reason to believe that less restrictive action will slow or otherwise prevent the accumulation of harms. If there is good evidence that simply informing the population of the risks of calorific diets and lack of exercise would limit the spread of the obesity epidemic, then an education program ought to be implemented instead of consumer interventions. If, however—as the evidence suggests— such an education program is highly likely to fail and hence simply delays the implementation of more worthwhile interventions, then we ought to implement the better interventions immediately. Obesity and self-governance. Third, one might object that individuals inflict the harms of obesity on themselves in full knowledge of the relevant risks and in accordance with their reasoned balancing of the risks and benefits. In this respect, treating obesity as if it possesses the

contribution of particular acts to an individual’s own ill health. Exposure to food advertising, the inaccessibility of healthy eating options, low socioeconomic status, and poor educational attainment are all strong influences on an individual’s risk of becoming obese. In this sense, individuals are exposed to many behaviors and structures that increase the risk that they will become obese. It is simply untrue that most individuals who are obese would choose to remain obese and that they freely engage in behaviors that they know will make them obese. We ought to recognize that structures, behaviors, and individual acts that raise the risk that an individual will act contrary to his or her professed interests may also be legitimate targets of intervention.48 Stigmatization. Finally, one might suggest that labeling obesity a public health emergency is likely to stigmatize obese individuals and license the use of penalizing interventions against the individuals themselves. There have been recent proposals H AS TI N GS C EN TE R RE P O RT

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from public health campaigners to engage in campaigns designed to shame obese individuals into healthier lifestyles.49 By advocating for the view that obesity is a public health emergency, so the objection goes, we inadvertently strengthen the case for such methods. To be perfectly clear, we make no claim as to whether obesity constitutes a public health emergency, merely that it shares many of the morally relevant features of a public health emergency. We are cognizant of the risk of further stigmatizing obese individuals, and we believe this risk is a vital consideration in deciding what policies to adopt, how to implement them, and how our language best frames their implementation. We are, however, skeptical that declaring obesity a public health emergency or that a resultant state intervention targeted at reducing or preventing obesity will inevitably result in any further stigma. Indeed, if the individual responsibility model of obesity is rejected, then labeling obesity as a public health emergency may help signal the joint responsibility of state and citizenry for tackling the factors that increase the risks of obesity. For example, declaring a public health emergency may make it easier to consider the possibility of positive interventions to promote better health, such as making it easier to walk and cycle and adopting food industry regulations that reduce the risk of harm to us all. In this respect, the claim that obesity shares most of the morally relevant features of paradigmatic public health emergencies need not stigmatize the obese. It may instead highlight the complex ways in which individuals cannot unilaterally reduce their risk of becoming obese. Against a Simplistic Distinction

T

he standard view that obesity does not warrant a similar degree of direct intervention as a public health emergency is reliant on a particular concept of public health emergency, based on the paradigm of an

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infectious disease. In this view, public health emergencies are declared only in the face of harm that is held to be both grave and imminent. In our view, this approach is problematic because it adopts a simplistic dualist distinction between emergencies and everyday public health. The distinction between public health emergencies and normal practice cannot be made in this way, and therefore normative conclusions cannot be simply read off from the distinction in the way that is often assumed. Once we recognize that the risk of harm to individuals can be just as great in cumulative cases of harm, such as obesity, and we factor in all of the relevant costs, we have robust grounds to accept that state intervention to control obesity may be as justified as in the case of paradigmatic public health emergencies. Acknowledgments

We would like to extend our gratitude to Matteo Bonotti, Michele Loi, Mary Rawlinson, Rosa Terlazzo, and the editors and anonymous reviewers of the Hastings Center Report for helpful comments on earlier drafts of this paper. References

1. World Health Organization, “Obesity (Body Mass Index > 30) by Country,” Global Health Observatory Data Repository, 2008, http://apps.who.int/gho/data/node. main.A900?lang=en. Some commentators dispute whether BMI is a satisfactory measure of obesity, but nothing in our argument requires BMI to be a perfect measure. The phenomenon of obesity remains, however it may be measured. 2. Y. C. Wang et al., “Health and Economic Burden of the Projected Obesity Trends in the USA and the UK,” The Lancet 378 (2011): 815-25. 3. Ibid. 4. P. Muennig et al., “Gender and the Burden of Disease Attributable to Obesity,” American Journal of Public Health 96, no. 9 (2006): 1663-68. 5. Disability-adjusted life years include years of life lost to early mortality and years of life lost to disability. The DALY calculation for the 2010 Global Burden of Disease study did not include an age-weighting function. S. S. Lim et al., “A Comparative Risk Assessment of Burden of Disease and

Injury Attributable to 67 Risk Factors and Risk Factor Clusters in 21 Regions, 19902010: A Systematic Analysis for the Global Burden of Disease Study 2010,” The Lancet 380 (2012): 2240. 6. J. Anomaly, “Is Obesity a Public Health Problem?,” Public Health Ethics 5, no. 3 (2012): 216-21. 7. See D. Abbott, “Putting Children at the Heart of Public Health” (speech, Institute for Public Policy Research, London, March 5, 2012, at http://www. dianeabbott.org.uk/news/speeches/news. aspx?p=102796; M. Chan, “Obesity: Bad Trouble Is on Its Way” (speech, International Women’s Forum, New York, September 21, 2012), at http://www.who.int/dg/ speeches/2012/forum_20120921/en/. 8. We set aside the degree to which Mill was a simple “Millian” in these terms, but for an argument that he subscribed to a richer set of moral commitments than is often assumed, see A. Dawson and M. Verweij, “The Steward of the Millian State,” Public Health Ethics 1, no. 3 (2008): 193-95; B. Jennings, “Public Health and Liberty: Beyond the Millian Paradigm,” Public Health Ethics 2, no. 2 (2009): 123-34. There are also non-Millian forms of public health ethics; see A. Dawson, “Resetting the Parameters: Public Health as the Foundation for Public Health Ethics,” in Public Health Ethics: Key Concepts and Issues in Policy and Practice, ed. A. Dawson (Cambridge, UK: Cambridge University Press, 2011); L. O. Gostin and K. G. Gostin, “A Broader Liberty: J. S. Mill, Paternalism and the Public’s Health,” Public Health 123, no. 3 (2009): 214-21. 9. M. Powers, R. Faden, and Y. Saghai, “Liberty, Mill and the Framework of Public Health Ethics,” Public Health Ethics 5, no. 1 (2012): 6-15; L. Radoilska, “Public Health Ethics and Liberalism,” Public Health Ethics 2, no. 2 (2009): 135-45. 10. M. K. Wynia, “Ethics and Public Health Emergencies: Restrictions on Liberty,” American Journal of Bioethics 7, no. 2 (2007): 1-5. 11. Ibid.; R. E. G. Upshur, “Evidence and Ethics in Public Health: The Experience of SARS in Canada,” New South Wales Public Health Bulletin 23, no. 6 (2012): 108-10. 12. International Federation of Red Cross and Red Crescent Societies, World Disasters Report 2012 (Geneva, Switzerland: International Federation of Red Cross and Red Crescent Societies, 2012), 152-54. 13. See P. A. Singer et al., “Ethics and SARS: Lessons from Toronto,” BMJ 327 (2003): 1342-44. 14. M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd ed. (New York: Basic Books, 2000), 40. 15. L. O. Gostin et al., “The Model State Emergency Health Powers Act: Planning November-December 2014

for and Response to Bioterrorism and Naturally Occurring Infectious Diseases,” Journal of the American Medical Association 288, no. 5 (2002): 622-28. 16. See the U.S. Department of Defense’s statement that a public health emergency “may be caused by (a) . . . biological incident, naturally occurring or intentionally introduced; the appearance of a novel, previously controlled, or eradicated infectious agent or biological toxin; natural disaster; chemical attack or accidental release; radiological or nuclear attack or accident; highyield explosive detonation; and/or zoonotic disease.” United States Department of Defense, “Instruction: Public Health Emergency Management within the Department of Defense,” United States Department of Defense, March 5, 2010, p. 2. 17. C. Nelson et al., “Conceptualizing and Defining Public Health Emergency Preparedness,” in supplement 1, American Journal of Public Health 97 (2007): S9. 18. See J. Rubenstein, “Distribution and Emergency,” Journal of Political Philosophy 15, no. 3 (2007): 296-320. 19. T. Sorell, “Morality and Emergency,” Proceedings of the Aristotelian Society 103 (2003): 21-37. 20. The use of the term “population health” here involves no metaphysical commitments beyond thinking of populations as mere aggregates of individuals, although there are good reasons to adopt a more substantive notion of “population.” See M. Verweij and A. Dawson, “The Meaning of ‘Public’ in ‘Public Health,’” in Ethics, Prevention, and Public Health, ed. A. Dawson and M. Verweij (Oxford, UK: Oxford University Press, 2007), 13-29. 21. For instance, a “reasonable worst case” influenza pandemic constitutes a public health emergency because it could cause 210,000 to 315,000 excess deaths in the United Kingdom and a concomitant 1.75 percent drop in gross domestic product in a single year. U.K. Pandemic Influenza Preparedness Team, UK Influenza Pandemic Preparedness Strategy 2011 (London, UK: Department of Health, Social Services and Public Safety, 2011), 15-17. 22. World Health Organization, Health Risk Assessment from the Nuclear Accident after the 2011 Great East Japan Earthquake and Tsunami (Geneva, Switzerland: World Health Organization, 2013), 8. 23. The Model State Emergency Health Powers Act specifically includes actual as well as imminent harms in its definition of a public health emergency. In this paper, however, we are interested only in prospective risks of harms. Gostin et al., “The Model State Emergency Health Powers Act: Planning for and Response to Bioterrorism and Naturally Occurring Infectious Diseases.”

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24. J. S. Mill, On Liberty (and Other Essays) (Oxford, UK: Oxford University Press, 1991), 106-107. 25. A. Akabayashi and Y. Hayashi, “Mandatory Evacuation of Residents during the Fukushima Nuclear Disaster: An Ethical Analysis,” Journal of Public Health 34, no. 3 (2012): 348-51. 26. Mill, On Liberty (and Other Essays), 107. 27. We would like to thank the Hastings Center Report’s reviewers for suggesting the following case. 28. See Gostin and Gostin, “A Broader Liberty: J. S. Mill, Paternalism and the Public’s Health.” 29. For Mill, these kinds of costs are likely to constitute mere “offense,” rather than harms per se. Mill, On Liberty (and Other Essays), 91. 30. We leave aside the question of whether there is a preexisting moral obligation to vaccinate even if herd immunity is not at risk. See A. Dawson, “Vaccination Ethics,” in Principles of Health Care Ethics, ed. R. E. Ashcroft et al. (John Wiley & Sons, 2007), 617-22. 31. The economic, social, and political cost of HIV/AIDS in sub-Saharan Africa, for instance, illustrates how widespread illness can impose significant costs on even those prudent (or lucky) enough to refrain from reckless behavior. H. Feldbaum, K. Lee, and P. Patel, “The National Security Implications of HIV/AIDS,” PLOS Medicine 3, no. 6 (2006): 774-78; C. McInnes and K. Lee, “Health, Security and Foreign Policy,” Review of International Studies 32, no. 01 (2006): 5-23; S. Peterson, “Epidemic Disease and National Security,” Security Studies 12, no. 2 (2002): 43-81. 32. Note that in Mill’s example of the “unsafe bridge,” it is assumed that the state should play a role, through the supply of public officials such as the police, in protecting the public from harm. Such provision must be public, as no individual can effectively protect him- or herself from such eventualities. 33. V. R. Dhara and R. Dhara, “The Union Carbide Disaster in Bhopal: A Review of Health Effects,” Archives of Environmental Health 57, no. 5 (2002): 391-404. 34. World Health Organization, “Summary of Probable SARS Cases with Onset of Illness from November 1, 2002 to July 31, 2003,” 2003, http://www.who.int/csr/ sars/country/table2004_04_21/en/index. html. 35. See U.K. Comptroller and AuditorGeneral, Tackling Obesity in England (London: National Audit Office, 2001), 16; J. R. Banegas et al., “A Simple Estimate of Mortality Attributable to Excess Weight in the European Union,” European Journal of Clinical Nutrition 57, no. 2 (2003): 201-208.

36. K. M. Flegal et al., “Excess Deaths Associated with Underweight, Overweight, and Obesity,” Journal of the American Medical Association 293, no. 15 (2005): 1861-67. 37. For example, in the United Kingdom, such a pandemic is predicted to cause from 210,000 to 315,000 excess deaths. See U.K. Pandemic Influenza Preparedness Team, UK Influenza Pandemic Preparedness Strategy 2011, 15-17. 38. Quality-adjusted life years lost to disease are functionally equivalent to DALYs attributable to that disease. QALY and the 2010 Global Burden of Disease Study DALY calculation differ only in terms of the disability-weighting methodology. Wang et al., “Health and Economic Burden of the Projected Obesity Trends in the USA and the UK.” 39. B. Butland et al., Tackling Obesities: Future Choices Project Report (London: UK Government Office for Science, 2007), 34. 40. Ibid., 5. 41. Ibid. 42. F. S. Luppino et al., “Overweight, Obesity, and Depression: A Systematic Review and Meta-Analysis of Longitudinal Studies,” Archives of General Psychiatry 67, no. 3 (2010): 220-29. 43. See P. Sumithran et al., “Long-Term Persistence of Hormonal Adaptations to Weight Loss,” New England Journal of Medicine 365 (2011): 1597-604; R. R. Wing and J. O. Hill, “Successful Weight Loss Maintenance,” Annual Review of Nutrition 21, no. 1 (2001): 323-41. 44. T. Brown et al., “Systematic Review of Long-Term Lifestyle Interventions to Prevent Weight Gain and Morbidity in Adults,” Obesity Reviews 10, no. 6 (2009): 627-38; S. Capacci et al., “Policies to Promote Healthy Eating in Europe: A Structured Review of Policies and Their Effectiveness,” Nutrition Reviews 70, no. 3 (2012): 188-200; R. W. Jeffery, “Community Programs for Obesity Prevention: The Minnesota Heart Health Program,” Obesity Research 3, no. S2 (1995): 283S-88S. 45. J. Beaulac, E. Kristjansson, and S. Cummins, “A Systematic Review of Food Deserts, 1966-2007,” Preventing Chronic Disease 6, no. 3 (2009), A105. 46. N. A. Christakis and J. H. Fowler, “The Spread of Obesity in a Large Social Network over 32 Years,” New England Journal of Medicine 357 (2007): 370-79. 47. See E. Scarry, Thinking in an Emergency (New York: W. W. Norton, 2011); S. Elbe, “Should HIV/AIDS Be Securitized? The Ethical Dilemmas of Linking HIV/ AIDS and Security,” International Studies Quarterly 50, no. 1 (2006): 119-44. 48. See Mill, On Liberty (and Other Essays), 91. 49. D. Callahan, “Obesity: Chasing an Elusive Epidemic,” Hastings Center Report 43, no. 1 (2013): 34-40. H AS TI N GS C EN TE R RE P O RT

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